Citation Nr: 18144332 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 10-37 931 DATE: October 24, 2018 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire appeal period, the Veteran’s bilateral hearing loss has been manifested by hearing impairment corresponding to a noncompensable evaluation. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Navy from November 1988 to December 1991. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a November 2009 rating decision of a regional office of the Department of Veterans Affairs (VA). As will be discussed immediately below, on his substantive appeal to the Board, the Veteran requested a hearing before a Veterans Law Judge. However, he failed to show for the Travel Board hearing scheduled for March 13, 2018. The RO issued notifications of the scheduled hearing. See Correspondence dated February 2018. There is no reason indicated for the Veteran’s failure to appear. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d), (e). Duties to Notify and Assist The Board notes that it is the Veteran’s responsibility to keep VA apprised of his current address. In this regard, notice means written notice sent to a claimant at his latest address of record. 38 C.F.R. §3.1 (q). The Veteran must keep VA apprised of his current contact information, or designate a reliable informant, either his representative or someone in his household, to pass his contact information. Pursuant to the Board’s March 2016 remand directives, the RO arranged a Travel Board hearing scheduled for March 13, 2018 before a Veterans Law Judge of the Board. A notification was sent in February 2018 of the scheduled hearing. The RO previously sent letters in November 2017 and December 2017 to a different address of record. Although the record reflects that the November and December 2017 letters were returned undelivered, the record does not indicate that the February 2018 notification, sent to a different address, was returned. To date, the Veteran has not provided good cause for his failure to report to the scheduled hearing. Accordingly, there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided a VA examination in November 2010, which the Board finds to be adequate for rating purposes, as the examiner provided the information necessary to rate the service-connected disability on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has further been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his claim. The Veteran has not identified, and the record does not indicate, existing records pertinent to these claims that need to be obtained. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA’s duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Bilateral Hearing Loss The Veteran disagrees with the noncompensable evaluation for bilateral hearing loss and seeks a higher rating under Diagnostic Code 6100. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In November 2010, the Veteran was afforded a VA audio examination. Results from the audiogram reflect that pure tone air conduction thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 10 20 LEFT 10 10 5 15 Pure tone threshold averages were 14 decibels for the right ear and 10 decibels for the left ear. Speech audiometry using the Maryland CNC tests revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. The VA audiologist concluded that the Veteran “exhibits hearing within normal limits bilaterally.” See November 2010 Hearing Loss and Tinnitus Disability Benefits Questionnaire. Based on the November 2010 audiogram results, with the utilization of Table VI, the Veteran has Level II hearing impairment in the right ear and Level II hearing impairment in the left ear. On application of those findings to Table VII, results in a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As demonstrated above, the evaluation for hearing loss is based on objective testing. At no time during the appeal period has the Veteran’s hearing loss disability been shown to rise to the level of symptomatology required to support a higher rating. Thus, the objective VA examination report does not support an assignment of a disability rating in excess of what the RO has already awarded - a noncompensable rating for the entirety of the appeal period. As such, a noncompensable disability rating is warranted. The Board has considered the Veteran’s contentions with regard to his claim for a higher rating. Although the Board does not doubt the sincerity of the Veteran’s belief that his hearing is more disabling than reflected in the current ratings, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). Further, the Board observes that the above November 2010 VA audiological examination report is based on consideration of the applicable provisions of VA’s rating schedule and consider the Veteran’s statements of the effects of his hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, even with consideration of those problems, a rating higher than the currently assigned is not warranted under the relevant criteria. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not helpful. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel